Tuesday, July 23, 2013

Expedited Hearing to Focus ITC Investigation Constitutes Retroactive Rule-Making and Violates APA

The ALJ reversed his earlier position and sustained complainant's objection to the Commission's Notice of Investigation which required the ALJ to hold an early evidentiary hearing on the domestic industry requirement and issue an initial determination on that issue within 100 days of institution of the investigation. "The rules that the Commission imposed in this case, as provided for in the Notice of Institution of Investigation were not published in the Federal Register in advance of their imposition, nor did the Commission follow any of the provisions required by 5 USC 553(b)(1), (2) or (3). . . . The new rules, implemented (so far) solely for this case and announced after the filing of the complaint, implemented a number of substantive changes. . . . The changes, in their scope and timing, go beyond mere procedure, striking at the process that has been used at the Commission for more than 20 years. . . . The rules that the Commission seeks to waive are not rules adopted for the orderly transaction of business, but rules that provide for the substantive rights of the parties. They define the process that is due in adjudication. . . . [Complainant] filed the complaint, had it accepted for adjudication by the lTC, and only then did it learn that it would be subject to a new, and different set of rules for adjudication. This is not permitted under the APA, as rule making is prospective only, never retroactive: 5 USC § 553(c)."

Products Having Laminated Packaging, Laminated Packaging, and Components Thereof, 337-TA-874 (ITC July 12, 2013, Order) (Essex, ALJ).

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